Court Rules on Funding Special Ed

By

John Hechinger

Updated June 23, 2009 12:01 a.m. ET

The U.S. Supreme Court delivered a victory to parents of children with disabilities who seek reimbursement for private-school tuition at public expense. School systems warned the decision could drain millions of dollars from tight education budgets.

In a 6-3 ruling, the high court said the family of an Oregon high-school student could receive a private education at taxpayers' expense without having first received special-education services in public schools.

It Is So Ordered

Under a landmark 1975 special-education law, known at the Individual with Disabilities Education Act, school systems must provide a "free appropriate" public education to disabled students. The act permits parents to seek public financing for private schools if they can establish that public schools can't meet their children's needs.

About 90,000 of the more than six million U.S. special-education students are educated in private schools or in private residential facilities at public expense. School districts said in court filings that special education already accounts for about 20% of school budgets, with private-school placements alone amounting to more than $5 billion annually.

Monday's decision involved a student identified only as T.A., who attended Oregon's Forest Grove school district from kindergarten through eighth grade. In 2003, after the school system said he wasn't eligible for special-education services, a private specialist diagnosed him with attention deficit hyperactivity disorder and learning disabilities.

His parents enrolled him in private school and hired a lawyer to argue for reimbursement. An administrative hearing officer determined that the school had failed to provide the student an appropriate education.

The school system fought the ruling in court, saying a provision in the federal special-education law requires that students first receive services in school before seeking a private placement.

Justice John Paul Stevens, writing for the majority, said Forest Grove's argument amounts to "immunizing" a school district from being liable for payment in the "egregious situation" in which officials unreasonably deny services and parents turn to private schools. He noted that such cases often take years in court to resolve.

In a dissenting opinion, Justice David Souter, joined by Justices Antonin Scalia and Clarence Thomas, noted the high cost of private-school placements and said it "makes good sense" for parents to work with administrators first to come up with an alternative within the public schools.

In 2007, the Supreme Court declined to issue an opinion on a similar case involving the son of Tom Freston, the former chief executive of Viacom Inc., leaving intact a lower court ruling.

In an interview, Mary Broadhurst, the attorney representing the Oregon student, said the family still has to go back to the trial court to win reimbursement of about $65,000 in private-school expenses, plus legal fees. Ms. Broadhurst said the family endured "tremendous hardship" pursuing the case, which they financed with mortgage loans.

Curt Decker, executive director of the National Disability Rights Network, said the case could spur schools to improve special-education services to avoid more out-of-district placements.

In New York City last year, 4,368 parents of disabled children requested hearings seeking reimbursement for tuition at private schools without district approval. That is up from 3,023 two years earlier, according to a brief in the Supreme Court case. Settlements and orders related to those cases cost the city nearly $89 million, up from $53 million.

"It's unfortunate that the Supreme Court didn't recognize the significant drain on resources that these cases represent for school districts," said Michael Best, general counsel for the New York City Department of Education.

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